Deirdre Saoirse Moen

On February 7th, @pubnt faxed a letter to the judge in the Ellora’s Cave vs. Dear Author case. Courtney Milan has a long blog post about it, so I thought I’d take a different tack on the issue.

Ellora’s Cave Thanked STGRB

On October 4, 2014, Tina Engler, writing as Jaid Black, posted a blog entry titled _To the Silenced Victims_, about how Ellora’s Cave’s authors and supporters were purportedly afraid to speak up.

On October 8, Ellora’s Cave tweeted a thank you to STGRB:

(Thank you to azteclady, and several others, for screencaps.)

Before those two tweets, Ellora’s Cave hadn’t tweeted at all since August 11—nearly two months—not even promotional tweets for its new titles. I called out Jaid Black/Tina Engler on this:

https://twitter.com/deirdresm/status/520081118175846400

For those who don’t know, the short version of StGRB is that it is not an anti-bullying group, but is a group of authors who bullied reviewers because of reviews the authors didn’t like. In other words, it’s ironically named.

Giving a one-star review to a book you genuinely didn’t like isn’t bullying.

I stated that the biggest problem with Ellora’s Cave’s tweets wasn’t so much the STGRB mention as failing to promote EC’s authors and books. I mean, it’s a Twitter account for a publisher that had new books published during those two months of radio silence. EC fixed that promotional shortcoming, and has remained focused on prompt tweeting of new releases, pretty much (I noticed a short blip, but didn’t record when, and I’m not interested in looking it up).

Oh, and also, Ellora’s Cave deleted one of those two tweets, the one that invoked STGRB. Why bother with this digression? Please hold….

@pubnt Invokes STGRB

What’s interesting about @pubnt’s tweets from the October 4th creation of the account until February 1 is that there are zero tweets for: “STGRB”, “goodreads”, “bully”, or “bullies”.

And yet, in her letter to the court, @pubnt relies heavily on STGRB rhetoric. Also, STGRB are in fact the only links in @pubnt’s letter.

What amuses me the most of all about @pubnt’s letter is the assertion that @pubnt is presenting evidence. STGRB isn’t evidence, it’s hearsay. Of course, if that’s how strongly TE feels about STGRB, she could have seen to it that the principal STGRBers were on EC’s witness list. But Ellora’s Cave didn’t choose to add said writers to their initial disclosures.

As a general rule, anything said by anyone outside the list of people who make formal statements admitted into evidence or who are witnesses in the case—that’s hearsay as far as the case is concerned.

Remember the pocket universe episode of Star Trek: The Next Generation? Legal cases are kind of like that. Apart from the witnesses and people giving testimony (and the law including case law, of course), the world outside is invisible. Or, more accurately, hearsay, with some notable exceptions.

Invoking some random blog, even this one, is neither evidence nor proof.

Things @pubnt Says About #notchilled Regulars and My Statement About Who I Am

I’d like to refute the generalizations @pubnt makes about #notchilled regulars, at least as they pertain to me.

1. I have never met Jane Litte. I have followed the Dear Author twitter accounts because Jane Litte and others recommend books I’d like to read. I often disagree with JL’s ratings. As a specific example, one of my favorite books last year was Laurelin Paige’s Fixed Trilogy. JL gave the first book a C- rating. I agree that the first is the weakest of the three, but the plot twists in volumes two and three made it one of my favorites, and book one was strong enough for me to continue reading. Apparently not for JL, and that is her choice.

2. I make a horrible minion. I will only do what I think is right, and, even then, I don’t have time (or energy) to do all of that. In Gretchen Rubin’s four tendencies, I’m a rebel with questioner tendencies, so I’m perfectly fine with not fitting in and not going along with a crowd.

3. I have made far more money from being traditionally published than being self published. I have books published by Que, Sams, Baen, and BenBella, plus others under pseudonyms. (If you follow the purchase/sale trail of the first three, you’ll see that means I’ve been Big5 published by two different routes: Sams and Que became part of Simon & Schuster, and some of the work I did for Macmillan Computer Publishing meant I’ve been published by Holtzbrinck.) I’ve never been published in the romance genre, and I’ve only been rejected once in that genre—more than twenty years ago. Frankly, it was a horrible proposal for a category book, but I was still too green to know that. I am working on a romance novel, and I have an agent who’s already been promised first look.

4. That said, of course I’ve been rejected, too. It’s a part of being an author. Though sometimes rejections sting (and I do whine about those privately), I also get over them. As a friend of mine says, the right attitude to take to these if they’re getting to you: “That’s one more time an editor tried to stop me and failed.” (Neither of us believe this viewpoint, btw, it’s just that it’s one that happens to work for both of us to help get us back to the salt mines of writing new stuff.) I don’t dislike anyone who’s rejected my work—except perhaps MZB, but that’s for reasons unrelated to her authorial or editorial work, at least as it relates to me.

5. I am not “jealous” of any successful writers, nor am I envious of them. I also understand the difference between these two words.

6. I don’t accept advertising on deirdre.net, and never have. That said, I make a small amount of money every now and then from Amazon’s Associate program. How small? I haven’t received anything since 2011, and they’ve owed me $16.28 since 2005. Which I didn’t know until I logged in for this screencap.

   

   Essentially, I removed all the Amazon links I had after LGBT fail and have never really managed to build up the associate income stream I used to have, small though it was.

   That said, I have been considering what kinds of banner ads I might have, but generally those would not be paid ads. Like: I’d make a banner ad for my own new book, which makes sense, right? But how about if a close friend releases one that I liked? How about if my writing group did one? Should I promote Clarion (a workshop I did) via ad? If so, what are my guidelines about where I’d put those vs. where/why I wouldn’t? I don’t have those answers yet. Until I do: only inline contextual links.

7. I have a few other kinds of promotional links here and there, but none are specifically targeting indie authors unless it happens to be a book I’ve enjoyed.

8. One of the reasons I don’t generally review books is that I would feel compelled to be honest about books I didn’t like, and I feel that’s a problem as an author. Sometimes my reasons for disliking books have to do with various artistic goals I’ve got as a writer. For example, I stopped reading Neal Stephenson because his endings didn’t satisfy me. As a plot structure person, that’s a killer for a book for me. Clearly, many readers don’t share this perspective, and I’m glad he writes books they can enjoy.

   The guideline I’ve decided to follow is that I’ll promote books I genuinely love. Period.

Ellora’s Cave Author Exodus Support Thread

The Ellora’s Cave Author Exodus Support Thread is located here. Many EC authors have books out from other publishers. The purpose of the support thread is to help give those authors willing to speak out some visibility.

Note:

An earlier version of this post was supposed to be published over the weekend. Apparently several posts I thought I’d scheduled didn’t post. Oops.

Originally published at deirdre.net. You can comment here or there.

Today, the judge officially denied Plaintiff’s request for a Temporary Restraining Order, but not perhaps for the reason we’d hope:

The Court held a case management conference on January 26, 2015. During the proceeding, Plaintiffs confirmed that they do not intend to pursue the motion for temporary restraining order currently pending before this Court. As such, the motion for temporary restraining order filed on October 20, 2014 is hereby DENIED.

This had been hinted at by Plaintiff’s counsel in a footnote to EC/JJ’s reply to Defendants’ Opposition to Remand Motion on Nov 1. Bottom of p. 3:

Plaintiffs indicated that because the facts on the ground had changed, the urgency associated with a temporary restraining order had become attenuated and that a consolidation of the hearing with the final hearing on the merits under Rule 65(a)(2) would avoid 2 hearings, 2 trips for defense counsel and his client, 2 briefings, and twice the use of the Court’s time and resources.

If you ever need a great example of passive voice use and abuse? “Had become attenuated” is a beautiful one.

Joining of Parties Deadline Set

In the Case Management Doc:

The deadline for amending pleadings and adding parties: February 25, 2015.

So, we’ll just have to wait and see what’s going to happen there.

Random Legal Funny

There’s a footnote in one of Randazza’s filings that always makes me smile given that this case is about erotic romance. Bottom of p. 9:

Indeed, the seminal case in American defamation law was based on a publication that contained many factual inaccuracies, but the overall gist of the publication was not defamatory. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).

Seminal derives, of course, from semen/seed.

I don’t know if that particular wordplay was intentional, but it does amuse me.

Ellora’s Cave Author Exodus Support Thread

The Ellora’s Cave Author Exodus Support Thread is located here.

Originally published at deirdre.net. You can comment here or there.

I’d be remiss if I didn’t post this, even though I don’t believe it.

http://twitter.com/jaidblack/status/558045247226519554

Well, they haven’t.

Anyhow, I believe pubby’s a narcissism farm.

Speaking of…

Jaid: pariah pariah pariah

Pubnt: pariah pariah pariah pariah

It’s Almost 1099 Time

http://twitter.com/courtneymilan/status/557189714118078464

http://twitter.com/courtneymilan/status/557190676379496449

http://twitter.com/courtneymilan/status/557245333726834688

http://twitter.com/courtneymilan/status/557245476337385473

http://twitter.com/courtneymilan/status/557245621791641600

http://twitter.com/courtneymilan/status/557245702255165440

Jon Stewart on Free Speech

From a few days ago.

Ellora’s Cave Author Exodus Support Thread

The Ellora’s Cave Author Exodus Support Thread is located here.

Originally published at deirdre.net. You can comment here or there.

Not a surprise that Ellora’s Cave lost their motion, but I was hoping for more of a judicial smackdown.

Since it’s been two months, here’s the summary. After Ellora’s Cave/Jasmine Jade filed against Dear Author/Jane Litte in Ohio state court (EC/JJ being in Ohio; DA/JL in Iowa), defense filed to remove the case to federal court. EC/JJ filed a remand motion at the end October, and it’s just been ruled upon today.

Five-page ruling here. I’ve also updated the copy of the federal court documents I have on Dropbox.

What’s Next?

The Case Management Conference Scheduling Order specifies that Plaintiffs must make a settlement demand two weeks prior, and Defendants must make an offer one week later.

At least fourteen (14) days prior to meeting with the Court, Plaintiff(s) shall have made a demand with a written description and monetary breakdown of the damages claimed, and no later than seven (7) days thereafter, Defendant(s) shall have responded with an offer. This is to be included in the Parties’ Planning Meeting Report.

Obviously, I don’t expect this to result in an actual settlement unless EC/JJ folds.

Then the Case Management Conference

Main discovery is stayed until after the Case Management Conference on January 26th.

That’s not a meeting that’s public, but this particular judge has very specific instructions for the CMC. From the CMC Scheduling Order:

Lead counsel, parties with full settlement authority, and a representative with full settlement authority of any Insurance Carrier must be present and have calendars available for scheduling.

From his Judicial Preferences Page:

Judge Adams is of the view that the Case Management Conference is of extraordinary importance. He expects counsel to be prepared with the factual predicate from the standpoint of counsel’s client. Judge Adams expects the client to be present; where the client is a corporate entity, he expects a person to be present who has the greatest knowledge of the relevant facts. This is probably NOT in-house counsel. Judge Adams tailors the Case Management Plan based on the information supplied at the CMC by counsel and parties.

Given those two quoted paragraphs, I can’t see how both Tina Engler (as settlement authority based on her majority ownership and the subject of one of the claims) and Patricia Marks (as EC’s CEO of record) can avoid being there. Also, obviously, Jane Litte needs to be there.

How’s This for Irony?

Hat tip to tejasjulia.

Lest you think this is old, the blog post is dated January 3, 2015.

What does this mean?

1. EC has been recently advertising through Google.

2. At least one of those ads was served to Dear Author, who makes ad revenue from Google ads.

3. So, indirectly, Ellora’s Cave is paying Dear Author.

Note: I’ll link to Courtney Milan’s promised post about the remand decision once it’s up.

Originally published at deirdre.net. You can comment here or there.

http://twitter.com/courtneymilan/status/545585693854937089

http://twitter.com/pubnt/status/547908089106931712

http://twitter.com/courtneymilan/status/547769673631412224

Meanwhile, Pubnt Ignores the Question and Spouts The Following…

Here are some posts in between those where pubnt claimed to know the law:

http://twitter.com/pubnt/status/545822568029380608

http://twitter.com/pubnt/status/546045446242967552

http://twitter.com/pubnt/status/546146352078802944

http://twitter.com/pubnt/status/546146540210114561

http://twitter.com/pubnt/status/546146788999458816

http://twitter.com/pubnt/status/546147511849988096

Note that Pubnt’s commenting about what Ellora’s Cave’s legal strategy on the DA case will be.

http://twitter.com/pubnt/status/546184797513871361

http://twitter.com/pubnt/status/546235731426172928

http://twitter.com/pubnt/status/546772476962037761

::cough::

http://twitter.com/pubnt/status/546774924250345473

http://twitter.com/pubnt/status/546779269834498049

“…the US constitutionalized the previously English libel law…”? That is a serious misreading of New York Times v. Sullivan. Courtney Milan talks about the case in this post on the EC lawsuit.

http://twitter.com/pubnt/status/546779462390788097

Again, a serious misreading of New York Times v. Sullivan. In the US, the person making the claim (i.e., the Plaintiff) has the burden of proof. Instead, what Sullivan did was change the standard of proof required. As the NY Times published on the 50th anniversary of the decision:

The ruling was revolutionary, because the court for the first time rejected virtually any attempt to squelch criticism of public officials—even if false—as antithetical to “the central meaning of the First Amendment.” Today, our understanding of freedom of the press comes in large part from the Sullivan case. Its core observations and principles remain unchallenged, even as the Internet has turned everyone into a worldwide publisher—capable of calling public officials instantly to account for their actions, and also of ruining reputations with the click of a mouse.

Pubnt’s Claim About When DA’s Article Was Published

http://twitter.com/pubnt/status/546777758853267457

http://twitter.com/pubnt/status/546778135858253824

http://twitter.com/pubnt/status/546778506206924800

http://twitter.com/pubnt/status/546780038398763008

http://twitter.com/pubnt/status/546780835635265538

http://twitter.com/pubnt/status/546785346957369344

http://twitter.com/pubnt/status/546786017421041664

http://twitter.com/pubnt/status/546786435614113792

Pubnt’s claiming that EC had a bad transition period and DA’s article hit at the worst of that time, and unfairly exaggerated the situation. But that’s not what “reckless disregard” actually means in this context. From Sullivan:

Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless “actual malice”–knowledge that statements are false or in reckless disregard of the truth–is alleged and proved.

Let’s see:

1. Those editors who said they weren’t paid still say they’re not paid. Here’s one.

2. Authors are still claiming not to receive timely royalties. Here’s one. Here’s another.

Doesn’t look like either conscious falsity or reckless disregard of the truth from here.

Back to Pubnt’s Legal “Qualifications”

http://twitter.com/pubnt/status/547767378726359040

Legal bloggers, huh? Sans blog.

http://twitter.com/pubnt/status/547797856707686400

http://twitter.com/pubnt/status/547798070562680832

And, my personal favorite, TinaNut’s fascination with dissing hybrid authors (including myself) and self-published people as “slush pilers,” especially given that Tina Engler was basically only self-published for years. In this tweet, Pubnt’s dissing Courtney Milan, who not only went to law school, she’s clerked with some pretty amazing people. Also, Courtney’s been on the New York Times Bestseller list, where Jaid Black/Tina Engler has not.

http://twitter.com/pubnt/status/547907822147878913

Pubnt Finally Answers Courtney’s Question

http://twitter.com/pubnt/status/548688804736139264

Bzzt. Admittedly, I know more than the average person about that area of law, but even if I hadn’t, I’d have guessed it related to probate law (which isn’t entirely accurate, but it’s at least in the ballpark).

http://twitter.com/courtneymilan/status/548692056684888064

http://twitter.com/courtneymilan/status/548692301758103554

http://twitter.com/courtneymilan/status/548692803573002240

http://twitter.com/courtneymilan/status/548693248995524608

http://twitter.com/courtneymilan/status/548693663782817793

http://twitter.com/courtneymilan/status/548694089420791808

Deirdre Surveys the Husband

Rick just woke up from a nap when I was starting to write this post, so I asked him Courtney’s question.

He gestured at the air a couple of times, and, within thirty seconds came up with “Rule Against Perpetuities.” Which is correct. Also, not bad for someone still half-asleep. Here’s the Wikipedia page about the scenario.

Oh, and Rick hasn’t gone to law school either.

Originally published at deirdre.net. You can comment here or there.

Up until the rule, the following is Rick’s commentary that he initially posted as a commentary here. I added links to @Pubnt’s tweets.

I did some very modest legal research on some more of the legalistic language TinaNut’s been using lately. Just to be clear, as a non-lawyer I’m no expert and have zero access to Lexis, etc. I’m just a layman with an ongoing interest in legal issues (who learned enough business law to pass the CPA exam, back in the Pleistocene).

TinaNut’s been saying things like:

Causing damages to EC is in breach of contract – breaching the implied Trust & Confidence term.

It could now also be u r in Breach of Trust & Confidence, or in litigation, and has caused recoverable damages. Otherwise you would have been paid by now, like thousands of other good EC authors/employees.

Q: Are you another author in litigation with EC and has caused recoverable damages? If so wait till the end of the lawsuit you are involved in to get paid, less recoverable damages. T&C clause is actionable in Damages when breached.

Under UK common law, employment contracts are construed as having an implied term requiring ‘mutual trust and confidence’, which in some circumstances can even overrule provisions in explicit employment-contract terms, and applies to both employer and employee. Notable UK cases have involved suits by employees alleging that hostile or dishonest management had carried out ‘constructive termination’, and successfully sued for tort damages on that basis. It’s important to note that the aggrieved party had to specifically litigate this claim. It wasn’t tacked on as a ‘by the way’ to (say) an only somewhat related defamation suit between the employer and some third party.

Australia inherited the ‘mutual trust and confidence’ concept from the UK, until a few years ago when the High Court jettisoned the concept from all subsequent Australian cases.

I find no evidence that the concept exists in USA law at all – with the minor (and irrelevant) semi-exception that insider trading prosecutions often allege that the accused brokers (etc.) failed in fiduciary duties that entail requirements of trust and confidence.

In USA employment law, zip.

The parallel concept in USA employment law seems to be the implied covenant of good faith and fair dealing, which is part of every employment contract because it’s part of every contract, period. Some states with at-will employment legal regimes recognise violation of this implied covenant as a valid grounds on which an employee might be able to prove wrongful termination (despite employment being otherwise at will, in that state).

TinaNut’s… er… reasoning is pretty murky on this whole matter, but here’s my best reconstruction of what she’s alleging: Employees’ contracts with EC include confidentiality clauses, and they’re also bound by implied covenants of good faith and fair dealing (which she mistakenly calls ‘the implied Trust & Confidence term’). If an employee testifies for Dear Author, or tweets allegations supporting Dear Author’s position, during the EC/DA litigation, they are injuring EC’s interests in violation of contract, and are tort-feasors to the extent of the damage they are causing EC. The value of that damage can be decided only at the end of the EC/DA suit. [Insert here some justification for tying these tort damages to payables owed to them for wages and other payables. I got nothing.] So, it’s legitimate to wait until end of the current lawsuit and then offset damages owed by these employees against payables owed to them.

Sometimes, the Nut acknowledges that these alleged tort damages could be established only through separate, unrelated litigation, and other times doesn’t. E.g., she talks about ‘enjoining them’ later in the proceedings or that they will be ‘named at the right time’.

The Nut appears to be confused between allegations that employees who’ve testified or tweeted thereby committed defamation (and per her are to be ‘joined’ to the EC/DA lawsuit later), and allegations that they violated confidentiality or good-faith obligations to their employer, which if she wanted to go for that would be a separate lawsuit.

I thnk, BTW, that the odds of getting a tort judgement against an employee for testifying in a court case are exactly zero, and the likelihood of getting one for tweets saying ‘My employer’s been late paying me’ are pretty close to zero, too.

In addition, TinaNut speaks as if confidentiality and/or good-faith obligations of employees, such as they are, apply equally to non-employee authors having EC publication contracts for their books, which obviously isn’t the case. As an aside, I rather suspect that judges take a very dim view of attempting to bludgeon employees and business associates with confidentiality clauses to punish or intimidate them over testifying in court cases.

Then, too, there’s the troubling bit where TinaNut thinks EC can withhold timely payment of employees (or business partners) just because she thinks EC might speculatively be able to sue them for damages in the future, and expect they’ll somehow acquire the right to remit only the net of those amounts. Sorry, paranoid pistachio, not the way it works.

It seems almost gratuitous to harp on the hapless hazelnut’s meaninglessly vague and loose terms ‘involved in the lawsuit’ and ‘part of the lawsuit’, which lumps together actual parties to the EC/DA suit, people who’ve testified, and even apparently people who’ve merely tweeted about it. To her credit, she does acknowledge this vagueness when called on it.

Does the wandering walnut really believe her legal fantasy? I fear that she does. And the fall will be hard and painful.

(The rest is Deirdre’s commentary.)

What fascinates me most about the annoying acorn’s allegations are some of the following:

1. The persistent statement that Tina Engler is the CEO of Ellora’s Cave, when her mother, Patricia Marks, is the CEO of record. That makes me wonder what the actual truth of the matter is.

2. The statements that EC has “thousands” of employees, later shifted to “thousands of good EC authors/employees”. I counted EC’s authors back when the suit began, and iirc, EC had 934 authors at that count. So near as I can tell, EC’s never topped the thousand mark of authors and employees (and contractors) combined. Certainly not multiple thousands.

3. There’s a consistent conflation between employees and contractors. Contractors aren’t employees, and employees aren’t contractors. Inherently, a corporation has less loyalty to a contractor than to an employee; the reverse is also true. This should not come as a surprise.

4. “Loyal” authors don’t tweet, and publishers move promotional funds away from tweeting authors. That may be true for EC, but it’s not true generally. (one) (two) (three) (four) (You can really see the repetitiveness in that series of four tweets.)

5. EC’s a “massive” corporation (or “massive accredited publisher” in other tweets).

   What’s particularly fascinating to me about the whole “massive corporation” assertion is that I’ve actually been a software engineer at an actual massive corporation. Look, if you don’t have full-time sushi chefs in multiple countries, it’s just delusions of grandeur.

6. Related to the “accredited” publisher, there’s also the claim that EC’s an “approved” publisher. Courtney Milan commented:

   This is especially weird since there IS no RWA approved list any longer.

   Courtney’s on the RWA board (though speaking as an individual), so she’d know.

   What’s hilarious to me about TinaNut’s continued railings against self-publishing is that, by Tina Engler’s own admission, Ellora’s Cave is an extended self-play. Here’s an old DA interview with Tina/Jaid, and the pull quote to end all pull quotes:

   I was an unpubbed author with a trash can full of rejection letters. As a writer I had reached an impasse: either I was going to have to conform to NY standards and sex down my manuscripts or I was going to have to start my own publishing company.

Courtney Nails It (As Usual)

Just as I’m about to click “post,” Courtney Milan tweets….

https://twitter.com/courtneymilan/status/544635698817822720

https://twitter.com/courtneymilan/status/544635780149571584

Lots of Comments on the Last EC post

If you’re reading my posts elsewhere (Tumblr, Dreamwidth, Livejournal, RSS), then you may have missed a lot of interesting comments.

For Your Amusement

For all your future nut phrase constructions, here’s a list of culinary nuts that may help you.

Originally published at deirdre.net. You can comment here or there.

This post discusses phrasing of the initial lawsuit filed by Ellora’s Cave and Jasmine Jade Enterprises against Dear Author and DA columnist Jane Litte. In Courtney Milan’s thread system, this is Thread A.

The Tense Thing

My most frequently overlooked problem when critiquing other people’s work is tense wobbles. So, while I noticed the change of scope in this section I’m going to quote, I’d missed some potential implications of the tense shift.

I was talking about the case with a friend of mine, and he said:

I notice they’re playing silly buggers with the tenses.
“have not” and “are”
and they don’t dispute that in fact they hadn’t been paid in six months.

Here are two of Jane’s allegations in the Curious article:

There is a set of authors who have not received royalty payments in over six months. EC has blamed this repeatedly on a new accounting system installed in December of 2013.
[…]
The total sum of unpaid royalties, editor fees, cover artist fees is in the several thousands, perhaps approaching six figures.

In EC/JJ’s lawsuit, here’s what they allege:

[…] Such false statements include:
[…]
That the Authors have not received royalty payments in over six months when in fact they are being paid.
[…]
That unpaid royalties, editor fees, and cover artist fees amount to several thousands of dollars perhaps approaching six figures when they do not.

In my Proving Substantial Truth post, I’d talked about the size of the data set in proving that “a set of” is untrue.

But I hadn’t talked about the fact that what EC claimed was defamatory in the lawsuit paperwork wasn’t actually what Jane Litte wrote. Courtney Milan talked about this some in the interview she did on the SBTB podcast.

Hypothetically Speaking

Let’s say the following are true:

1. An article, published mid-September, states “a set of authors who have not received royalty payments in over six months.” Past tense. There are over 500 authors, but the article’s author knows the claims are true for at least three. a = {Fred, George, Mark}

2. After the article was written, the publisher in question writes checks for all its authors due royalties for a given accounting month. Let’s say the royalties being paid are for May, the checks are dated August 31, and they are mailed in late September.

3. After the checks are mailed, the publisher in question files a defamation lawsuit abut the blog post. In said lawsuit, the publisher claims, “That the contract authors (Authors) have not received royalty payments in over six months when in fact they are being paid.”

4. Note that there’s no claim that said Authors are fully paid. Or that they had been being paid. In fact, it’s present continuous tense, making it sound like the checks are being written even as the paperwork for the lawsuit is being typed. (Lest one think I’m being harsh on this point, remember that we’re discussing a publisher. Tenses and nuance are their core competency.)

5. After the lawsuit is filed, Fred, George, and Mark each receive a check for the most recent month’s royalties, but this does not change the fact that the language in the blog post was correct as of the date it was published. They are still owed back payments, however.

So, hypothetically speaking, it’s entirely possible that there was a set of authors who hadn’t received royalty payments in over six months, and for whom between the time of that post and the lawsuit being filed, checks had been cut for at least some payment, making the present-continuous-tense statement also true. (It’s probably also not necessary for every single author to be paid to make the present-continuous-tense statement true, either.)

Yes, well, that’s all well and good, but there was a second part to the article’s claim, and how could that work? Here’s a hypothetical.

EC claimed: “That unpaid royalties, editor fees, and cover artist fees amount to several thousands of dollars perhaps approaching six figures when they do not.”

This really hinges, I think, on nitpicking two phrases: “several thousands” and “perhaps approaching six figures.”

I’ll just throw this out there: if the amount owing is known to be in excess of $100,000….

No, I can’t finish that sentence. I can’t rationalize the verbiage.

Remember, “unpaid royalties” as of mid-September includes not only May’s royalties that were reportedly received at the end of September or early October, but also monies received—for hundreds of authors—for June, July, August, and so far in September. Not just amounts that may be past due.

When one looks at, say, the amount Lolita Lopez didn’t receive in December 2013 that was on her 1099 (tl;dr: $13,354.79), and realize that there are (or were) several big-name EC authors who were making that kind of money monthly, royalty amounts owing in excess of $100,000 doesn’t seem that big a stretch for 4-1/2 months, even if the dramatic drop in Amazon sales were true.

Even without including editors and cover artists.

However, claiming that someone owes less than they actually do isn’t defamatory.

I have no personal information about the actual facts of the Ellora’s Cave case, so I have no information about the veracity of my hypotheticals.

So…?

The point of the above: if what Jane Litte wrote weren’t true, why not file a lawsuit claiming that specific language was untrue?

Why bother using different language in the filing when Jane’s post is right there to copy/paste from?

I’ll leave you to ponder that and end with a throwback moment.

Ellora’s Cave Legal Throwback: Two. Thousand. Three.

Over the past couple of months, I’ve read a great deal of the documents involved in the Brashear case where EC/JJ were defendants.

As a fascinating aside, one of the items EC submitted in their answer and counterclaims was a snippy email by Brashear to complaints that payments were, once again, late. That was in October 2003.

It was in response to an email that said this (and then some):

Look, I KNOW you guys work hard at keeping everything together at EC and this new accounting system has been trouble — BUT, don’t promise that checks are going to be mailed on a certain date and then fail to deliver. OK? (This is not the first time this has happened.)

Two. Thousand. Three.

It’s Chestnut Season

In addition to the above, I note that we should seasonally switch from popcorn to chestnuts—especially given the subject matter.

Originally published at deirdre.net. You can comment here or there.

Answer PDF here.

Note that this is a paragraph-by-paragraph response to the original complaint, so you should have a copy handy to look at them side-by-side.

I also haven’t compared it to the Dear Author answer yet.

The full docket with color-coding and blog post links and PDF original docs links is here. Note that in my blog posts, I refer to Jane Litte by her Dear Author pen name, but the legal documents, including that docket, use her legal name.

Short Version

Nothing leaped out at me off the page.

Dear Author’s answer had the affirmative defense of immunity under the Communications Decency Act (CDA) § 230, and Jane’s doesn’t. This is expected.

Apart from that, a quick scan of the two answers shows that they’re substantially similar.

Originally published at deirdre.net. You can comment here or there.

I had some expectations about what the reply would consist of.

tl;dr version: I’m disappointed.

My Take on It

1. 10/24 (Friday) EC’s lawyer files a motion to punt (remand) the case back to state court relying on Rose v. Giamatti.
2. The same day, DA’s lawyer shoots an email to EC’s saying, “I’m unsure if you’ve reviewed the case you primarily rely upon, but I believe that Rose v. Giamatti says the exact opposite of what you’ve raised it for.” In other words, Randazza said, basically: “Heads up: brain fart?” Which offered the opportunity for Mastrantonio to fix it.
3. Not hearing anything back, DA’s lawyer files an opposition on Sunday the 26th, including the email from #2. Which was included to demonstrate several points made, not just that one.
4. On Monday, 10/27, the judge gave EC/JJ a week to file a response. No evidence the judge had read the underlying paperwork, but it decreases his odds of getting it punted to a higher court if he allows time for Plaintiff to clarify.
5. EC/JJ filed their response on the 31st. Halloween. Trick or treat. It used the same single case citation.

It’s unusual for a motion to rely on a single case cite, and unusual for both sides to rely on the same single cite.

What I expected EC’s lawyer to do: find some other case cites that also cited Rose v. Giamatti and use some more of his skills to strengthen his narrative. ::cough::

Courtney’s analyzed the underlying issues, and I agree. Especially this part:

I lay this all out because EC’s reply confuses the merits of the controversy with the merits of a temporary restraining order. In order to evaluate the reply, you need to understand that first, these are two separate things, and second, that no lawyer–indeed, no halfway decent law student–should confuse the two.

Another Issue Here

In the footnote:

Plaintiffs indicated that because the facts on the ground had changed, the urgency associated with a temporary restraining order had become attenuated and that a consolidation of the hearing with the final hearing on the merits under Rule 65(a)(2) would avoid 2 hearings, 2 trips for defense counsel and his client, 2 briefings, and twice the use of the Court’s time and resources.

I just mention the following and allow you to draw your own conclusions….

1. Randazza is a noted first amendment attorney.
2. EC files for a TRO/Preliminary injunction against Dear Author to prevent further postings about EC from DA.
3. Case law about prior restraint is heavy first amendment case law.
4. First amendment cases are best heard in federal court (though I’m not sure they’re necessarily federal questions).
5. EC/JJ wants a remand to state court.
6. Suddenly the TRO’s urgency has “become attenuated.”

::cough::

Note that the case wasn’t removed because of federal questions, though. It was removed for diversity. Here’s a bit from the UScourts.gov site that explains that (emphasis mine):

A case also may be filed in federal court based on the “diversity of citizenship” of the litigants, such as between citizens of different states, or between United States citizens and those of another country. To ensure fairness to the out-of-state litigant, the Constitution provides that such cases may be heard in a federal court. An important limit to diversity jurisdiction is that only cases involving more than $75,000 in potential damages may be filed in a federal court. Claims below that amount may only be pursued in state court. Moreover, any diversity jurisdiction case, regardless of the amount of money involved, may be brought in a state court rather than a federal court.

This is one case where the defense gets to pick the court, though, because it’s about fairness to them.

Let’s Dig Into Some Older Cases

I wanted to look and see if there were other similar remand cases the federal judge had decided on. “Remand” is a hard word to search on because most federal judges of any tenure have had cases go up on appeal, then be remanded back to their original (federal) court to resume the remainder of the case.

This, however, was a different kind of remand: a case originally filed in state court being removed to federal, then an opposition filed.

22 Exchange LLC v. Exchange Street Associates LLC

Ruling here. Remand was allowed. (Remand ruling took 7 days; attorney’s fees were allowed.)

This situation does not apply in the EC/DA case.

In the case ruled on, a Delaware Plaintiff sued an Ohio Defendant, and the Defendant removed to federal. However, one of the situations where you can’t remove to federal for diversity jurisdiction is if you’re sued in your home state. It’s called the forum defendant rule.

In other words, if Dear Author/Jane Litte had been sued in Iowa where they are based, they wouldn’t have been able to remove to federal. However, that didn’t happen, and thus the underlying reason Exchange was remanded isn’t applicable here.

Similarly, IndyMac Bank, F.S.B. v. Harrison, Rivard, Zimmerman & Bennett, Chartered et al is inapplicable.

Electrical Enlightenment, Inc. v. Lallemand et al

Electrical Enlightenment, Inc. v. Lallemand et al remanded for lack of subject matter jurisdiction. Judge says it best:

Although Defendants attempt to couch the terminology used in the Complaint to assert a federal cause of action under copyright law in paragraphs 13-15, the mere use of the terms “copying Plaintiff’s commercial speech” does not make a copyright claim out of a breach of contract action.

(Remand ruling took over 2 months; attorney’s fees were allowed.)

Lasher v. Bank of America

Ruling here. (Remand ruling took just over a month, but denied attorney’s fees.)

Essentially: lack of a federal question, so lack of subject matter jurisdiction.

In addition, the resolution of the federal question will not be dispositive of the case. First, numerous pure state law claims have been plead by Plaintiffs. Furthermore, even the third cause of action will not be resolved by resolution of the federal law.

Two Others

This case there was a remand mentioned, but I don’t see a response to it on the docket.

Last but not least, this docket has a boatload of people and I don’t want to have to sort it out.

So the prior history I could find doesn’t really shed any light, unfortunately.

So When?

I’m unclear if a remand is considered a dispository motion—or not. Dispository (or dispositive) motions are ones that dispose of some aspect of a case: a motion for summary judgment, for example.

Since a remand ends the case with respect to that court, I’m not sure if it’s considered dispositive. It’s simply a civil procedure point I don’t know.

Anyhow, local rules say dispository motions need rulings within 30 days and other motions within 60. So it could be a while.

Or not.

Originally published at deirdre.net. You can comment here or there.

First: New EC-themed Art!

See above.

I’ve been trying to make a habit of including art with posts so there’s always a featured image. It’s a tough job. Broken ankh render from The Hairy Man.

Ellora’s Cave Lost Its COO?

Behold the current LinkedIn profile of Susan Edwards, who was Ellora’s Cave’s COO.

Note that it lists “Writer and Editor” as a job from “1980 – Present”, but Ellora’s Cave from “January 2005 – October 2014”, meaning she’s no longer there.

Detail of the Ellora’s Cave entry:

Now Dear Author tweeted this last month:

https://twitter.com/dearauthor/status/511638397107310592

…and…

https://twitter.com/dearauthor/status/514524281607581697

But this is the first I’ve heard that it was externally verifiable.

Ellora’s Cave Allegedly Selling Titles It Doesn’t Have the Rights To

Angelia Sparrow posted this morning.

My mail today. Why does a check cut on September 30 have an October 25 postmark?

Why are books that I have had the rights returned still on sale?

“Eight Days Ablaze” was returned in Feb. I am not getting paid for it.
Why is it still available at Amazon, iTunes, GooglePlay, and Ellora’s Site itself?

“Eight Days Ablaze” is apparently still theirs. I checked my reversion letters, and it is not mentioned. “For Love of Etarin” and “Raising the Dead” however, HAVE reverted.

“For Love of Etarin” is the same way. And yet, it still available on GooglePlay.

Glad Hands and Privateer’s Treasure are still up on Amazon, And the rights reverted back August 15.

I can verify that it’s still on sale, but obviously I have no personal notice of whether or not the rights are reverted. I’ll just point authors to a resource out there for you. If your rights are reverted, then a DMCA takedown notice to the vendor is an appropriate—and probably the fastest—action.

It doesn’t give you the correct royalties for any amounts that were due you, though. That has to be addressed separately. Unfortunately.

Previous post of interest from Angelia.

I previously talked about Shoshanna Evers’s related story of books being sold after reversion here.

Also, Cat Grant shows her May 2014 royalty statement, received in September, where she states that she was paid for a Nook ebook on a title that, per her, reverted in November 2013.

B&N/Nook pays 60 days after the end of the month. So, if a sale took place in November while EC still had the rights, it should have been in the royalty statement for February or maybe March. May is unreasonable.

Again, I can see what the allegations are, but I don’t have personal knowledge of the reversion, just taking the claims at face value. If three authors are correct, how many other authors has EC been selling the works of without the rights to?

The No-Frills EC v. DA Lawsuit Page

Yesterday, out of frustration at the lawsuit documents and the order mine weren’t in, I created this simple page that emulates the federal court docket.

For some exhibits, there’s a short summary. Each, where applicable, is color-coded based on the lawsuit “thread” as Courtney defined them. And, if there are blog posts relating to them, they’re listed below the docket item.

It’s a very lightweight page: no images, no Javascript, and very very little CSS.

Lawsuit Update

Yesterday, defense filed their opposition to Ellora’s Cave’s Motion to Remand (from federal court to state court). Courtney Milan analyzes.

Particularly interesting footnote:

On 7 October, an email was sent to at least one of Ms. Lampe’s supervisors. On 14 October that same email was forwarded to the entire department within which Ms. Lampe works. This is consistent with prior actions by directors of Ellora’s Cave. Ellora’s Cave has also engaged in acts to try and intimidate witnesses in this case. Therefore, sending this subpoena on short notice was of great importance. Since the Defense addressed this with Plaintiff’s counsel, these actions have waned.

Wow. Just. Wow.

Let me pull this one line out and bold it.

Ellora’s Cave has also engaged in acts to try and intimidate witnesses in this case.

That is not OK.

From the opposition brief itself:

All parties agreed that the matter required needed additional time, and therefore the parties stipulated to a hearing to be held on 27 October. In the intervening period, counsel for the Defense was able to fully evaluate the case, and on 17 October it became 100% clear that removal was appropriate.

I’m just going to put those two together and back away slowly.

What’s Next?

Jane Litte’s answer is expected soon. The court granted the motion to continue on the TRO and gave EC/JJ 7 days to file a response to defense’s objection about the removal. In that way, the removal issue is settled before the TRO hearing, which does make sense.

Originally published at deirdre.net. You can comment here or there.